This blog is mostly devoted to discussing educational policy issues and politics in Utah. This is meant to be a place to gather my research and thoughts into detailed explanations that hopefully add clarity to the discussion of public education. Many of the issues are multi-faceted and need to be examined thoroughly. Thus, some posts will be boring long. Come here looking for what I now understand. I will re-organize and readdress issues as I learn more.

Wednesday, September 3, 2008

Articles about Sevier County power plant referendum and SB 53--power company tries to switch zoning acronyms to avoid referendum

A few lines underlined by me.

http://www.sltrib.com/news/ci_9813736Sevier County plant will be on ballotResidents will vote on the coal-fired power facility in NovemberBy Patty HenetzThe Salt Lake TribuneArticle Last Updated: 07/08/2008 12:21:40 AM MDT

A referendum that would allow Sevier County residents to vote onconstruction of a coal-fired power plant will be on the Novemberballot, thanks to agreement Monday of the County Commission to take noaction on it. That allowed the measure to go to the public vote without thecommission actually endorsing it, said Commission Chairman Gary Mason. "I have no trouble [with] it going to the voters," Mason said."That takes the monkey off my back." The commission validated the citizens' referendum petition, whichhad more than the necessary number of signatures, Mason said. Themeasure would amend the county's conditional-use permit ordinance torequire voter approval prior to issuing such permits for coal-firedpower plants. It also would revoke any conditional-use permit issued - specificlanguage likely to further snarl the long-simmering dispute, becausethe county is now considering Sevier Power's permit request as aplanned unit development request, said County Attorney Dale Eyre. The terminology switch, said coal-plant opponent Elaine Bonavita,was "a smooth move." Everybody thought the commission's decision was a victory, saidBonavita, chairwoman of the Right-to-Vote Committee. "But I must tellyou this: It was a victory clouded in deceit," she said. " 'Conditional-use permit' is on the ballot, and if they changethe wording, they've pulled a fast one," she said. "We will go tolitigation." A planned unit development typically is a residential project thatfeatures relatively dense clusters of houses, which are usuallysurrounded by areas of commonly owned open space maintained by anonprofit community association. A conditional-use permit is avariance to allow a project otherwise prevented by zoning. Mason said the commission always considered the Sevier Powerrequest to be for a PUD. Right-to-Vote Committee attorney Jeff Owenssays that's not so. The county previously changed its zoning to allow the power plant.A lawsuit on that decision is pending, Eyre said. There also is thematter of SB53, a possibly unconstitutional law passed during thisyear's legislative session, which bans voter initiatives on land-useordinances. "SB53 will always be out there," Eyre said. "But unless someoneapproaches a court or maybe the attorney general's office, we're notgoing to take any action to stop the ballot." No matter which way the November vote goes, Eyre said, he expectsto go to court.Sevier Power co-owner Bruce Taylor sounded an ominous note aboutthe referendum after the commission meeting. "We do not believe it will get to the vote," he said.

History of the Sevier Power Project

Nevco, a Nevada limited liability corporation with offices inBountiful, for seven years has sought to build the Sevier PowerProject near Sigurd, about midway between Richfield and Salina. The$600 million plant would burn about 940,000 tons of coal per yearusing a technology called fluidized bed combustion to produce enoughpower for 135,000 homes. As a so-called merchant plant, it would sellthe power on the open market. The Sevier County Commission had fouroptions Monday: Adopt the petition and put it on the ballot; adopt itwithout putting it to the vote; reject it; or take no action, whichmeans the referendum goes to the ballot if no further action is takenduring the next 30 days.http://www.sltrib.com/news/ci_10321401

Attorneys for Sevier Power Company have sued Sevier County officials to get a citizens' initiative kicked off the ballot. They also seek an expedited decision as ballots have to go to print by mid-September. "I feel confident the judge will rule in our favor," says Fred Finlinson, a Saratoga Springs attorney representing Sevier Power. Finlinson notes that the proposed coal-fired power plant falls under the county's planned unit development (PUD) ordinance, not the conditional-use permit (CUP) section of county law. Last spring, more than 1,500 voters signed petitions provided by Elaine Bonavita's Right To Vote (RTV) committee, specifically targeting Sevier County's conditional use ordinance as it relates to coal-fired power plants. Known as Proposition 1, the measure would require voter approval before the county can issue conditional-use permits for such facilities. It would also revoke any permits already approved for pending power-plant construction. "That becomes fairly critical," Finlinson, a former state senator, adds, ''because the conditional use in Sevier County simply doesn't apply to any commercial or industrial development.''In early July, Sevier County commissioners allowed the initiative over the hotly contested power plant to advance to the ballot - then switched labels and began referring to Sevier Power's CUP request as a PUD.The switch in terminology means the ballot measure no longer applies, says Finlinson. RTV's attorney disputes that reasoning. "This is a conditional-use permit they're seeking. Whether you call it a pig, horse or cow, it is what it is," asserts Jeff Owens, a land-use attorney with the Salt Lake City-based firm of Strong and Hanni. Owens intends to argue that a recently passed state law, SB53, restricting local initiatives is unconstitutional, a legal battle he said he is eager to fight. "Our suspicions that they were trying to skirt our initiative are confirmed, and I don't think that will sit well with the people of Sevier County." cmckitrick@sltrib.com

New Utah law being put to test SB53, which took effect in May, limits local initiative and referendum rights pertaining to land-use ordinances and their implementation. While the state Constitution protects those rights, a large body of case law prohibits putting administrative land-use actions to a public vote. In late April, the attorney general's office gave its opinion that courts might strike down the new law. So far, two cases involving SB53 await legal action, including the Sevier Power case and another involving a proposed development in Beaver County.

It seems that since Sevier County officials failed to keep a citizen initiative that they don't like off the ballot, they're willing to try subterfuge to make the vote meaningless. At the least, the county attorney and County Commission are engaged in a campaign of aggressive obfuscation apparently aimed at frustrating the democratic right of their constituents to have a voice in determining the county's future health and welfare. The complicated conflict began when a grass-roots group of citizens objected to construction of the Sevier Power Project near Sigurd. The $600 million plant would burn about 940,000 tons of coal per year and spew CO2 and other pollution over the region. When the County Commission went ahead and approved the plant anyway, the Right to Vote Committee managed to gather more than enough signatures in just over a week to put the proposal on November's ballot. Their initiative would stop the power plant by revoking the current permit and requiring that voters approve any conditional-use permit for a coal-fired power plant. The group acted quickly, before a constitutionally suspect state law that bans initiatives and referendums on land-use issues went into effect. At that point, the County Commission members decided not to object to the voter initiative. Instead, they contrived another tack. The initiative as written amends the "conditional-use permit ordinance." So these public servants labeled the project a "planned-unit development," which requires a different kind of permit. Even if voters approve the initiative, it would not block the Sigurd plant. Cute. The planned-unit development label is ordinarily applied to residential projects that feature clustered housing and areas of open space. A power plant is no PUD. A conditional-use permit, on the other hand, is a variance to allow a project to go forward in a zone where it would otherwise be prohibited. Sevier County Attorney Dale Eyre contends that the Sigurd plant was always referred to as a PUD, but an attorney for the citizens group disputes that in a complaint to the Utah Attorney General's Office, and says he has documents referring to a conditional-use permit for the plant. He also says Eyre did not notify the group of the time period when it could contest wording of the initiative. Even if the county is innocent of skulduggery in this dispute, which seems highly unlikely, it is obviously guilty of standing in the way of citizens exercising their constitutionally protected right to legislate by initiative. That alone pollutes the atmosphere of Sevier County.

The Utah Constitution says that two groups can make laws: theLegislature and the people. The first group is trying to cut thesecond group out of the process. That isn't right, and the UtahSupreme Court should put a stop to it. This year, the Legislature passed Senate Bill 53, which says thatthe voters of any county, city or town may not initiate a land useordinance or a change in a land use ordinance. That's the right ofinitiative we all learned about in school. For good measure, the Legislature also said that the people maynot require a land use ordinance passed by the local legislative body(city council or county commission) to be submitted to the voters forapproval before it can take effect. That latter process is called areferendum. This bill, which was passed virtually without opposition in theLegislature and signed quickly into law by Gov. Jon Huntsman, is aninsult to the plain wording of the Utah Constitution, which reservesthe rights of both initiative and referendum to the people. In 2002, the Utah Supreme Court commented that "the power of theLegislature and power of the people to legislate through initiativeand referenda are coequal, coextensive and concurrent and share 'equaldignity.'" It follows that the Legislature can't take that power awayfrom the people in defiance of the Utah Constitution. Why would the Legislature do this? To help developers, of course.In the delicate balance between private property rights and communityinterests, the Legislature is putting its thumb on the scale to favorproperty. Private property rights are a foundation of the republic. But whenone property owner does something that profoundly affects hisneighbors, and their property, there's got to be a balancing process.That's where local planning and zoning laws come in. SB53 passed during a bitter fight in Beaver County over theredevelopment of Elk Meadows Resort into the $3.5 billion Mount HollyClub. The citizen effort to make that project the subject of areferendum will provide the test case for SB53 before the Utah SupremeCourt. The outcome of that case also will affect an initiativepetition in Sevier County targeting a proposed 270 megawatt coal-firedpower plant near Sigurd. Both of these projects will have far-reachingeffects on the neighboring communities. In both fights, the people should have the right to seek a directvoice at the ballot box, and the Legislature should not be allowed tomuzzle that voice.